HB: 608 Expanding the law against Discrimination based on Gender Identity: A Harmless “Housekeeping” Bill?

Testimony delivered to House Judiciary Committee by Christopher Jay, Attorney for Cornerstone Action.

For more information, contact cornerstone@nhcornerstone.org.

HB 608: Please vote “inexpedient to legislate.”

On behalf of Cornerstone Action, I urge you to reject HB 608 expanding the law against discrimination based on gender identity to other areas of the law prohibiting discrimination.

Cornerstone Action opposes this bill because it creates more problems than it solves and raises more questions than it answers.

The argument being put forward is that HB 608 is just a “housecleaning bill,” shoring up a few statutory sections that need updated language to match existing law.  This type of routine legislative update is common.

But is this simply “housekeeping?”

HB 608 makes over 20 additions to existing law.  What are the legal effects of those additions?  To be sure, some additions are mere housekeeping, like adding “gender identity” to RSA 354-A:17, the public accommodations discrimination statute. That addition appears to change nothing. But what about the others?

Is it mere “housekeeping” to add “gender identity” to RSA 651:6(I)(f)’s of hate-crime categories?  Existing law says that if a crime is motivated by gender identity-related motives, the victim has the full recourse and protection of the law.  HB 608 dramatically changes that. If enacted, a crime motivated by gender identity-related motives would add greatly enhanced jail time to the sentence: 2-5 extra years for a misdemeanor (i.e. a crime usually punishable by less than one year), 10-30 extra years for a felony, 20-40 extra years for manslaughter, and more.  The annual cost to the taxpayer of holding a prisoner in a NH jail is approximately $34,000 annually. This fact, combined with the enhanced penalties noted above, call for a fiscal note to this bill. The need for a fiscal notes lifts this bill out of the ‘housekeeping’ category.

Is it mere “housekeeping” to add “gender identity” to residential care and health care facilities, so that now they are prohibited from making “appropriate care” (RSA 151:21, XVI) decisions based on someone’s subjective “gender identity?” Determining what is “appropriate care” goes well beyond the existing public accommodations mandate, i.e. denying someone “accommodations, advantages, facilities, privileges” etc. of a public accommodation per RSA 354-A:17.

Is it mere “housekeeping” to add “gender identity” to NH Mental Health Services’ standards for assessing “adequate” treatment “in accordance with generally accepted clinical and professional standards?”  Will this force NH Mental Health Services to perform certain services, or to perform services according to standards that they see as undesirable?

Is it mere “housekeeping” to add “gender identity” to NH health care insurers’ requirements not to discriminate against a provider (i.e. a physician, or someone who furnishes healthcare services)?  Can, for example, a Christian Cost-sharing Plan which falls under the statute object to paying a health professional whose gender identity-related services violate their beliefs?  Does this apply to discrimination only against the provider, or to the provider’s services as well?  This very debate is underway in regards to the ACA.  Does the NH legislature understand how, and to what extent, this will affect NH health care insurers – and potentially, services that they would be forced to pay for?

If all this seems extraordinarily convoluted, indeed it is. HB 608 is not merely a “housekeeping” bill that updates statutes. Even putting aside the larger question of whether “gender identity” should – or can – function as a “protected class,” this bill has complex, sensitive, and potentially far-reaching implications.  From a legal perspective, from a state budget perspective, and from an economic perspective, HB 608 requires much more serious evaluation.